N.M. R. Gov. Disc. 17-206
N.M. R. Gov. Disc. 17-206
ANNOTATIONS The 2018 amendment, approved by Supreme Court Order No. 18-8300-009, effective December 31, 2018, provided alternatives to formal discipline for violations of the Rules of Professional Conduct, created diversion programs for attorneys who have violated the Rules of Professional Conduct as an alternative to formal discipline, provided consequences for the breach of a diversion agreement, and made technical language changes; added Paragraph H. The 2015 amendment, approved by Supreme Court Order No. 15-8300-022, effective December 31, 2015, authorized the Disciplinary Board to recommend that a respondent-attorney make restitution and reimburse the Client Protection Fund for any expenditure the Disciplinary Board incurred as a result of the attorney's misconduct; in Subparagraph A(6), provided new subparagraph designations "(a)" and "(b)"; in Subparagraph A(6)(a), after "formal hearing", added "and"; and in Paragraph C, added the last sentence. The 2012 amendment, approved by Supreme Court Order No. 12-8300-007 , effective March 5, 2012, provided that an order of restitution may be entered in the order imposing discipline or in a separate order; that an order of restitution is a judgment that may be enforced pursuant to the remedies at law available to a judgment creditor; and required that disciplinary action be published in the New Mexico Appellate Reports; in Paragraph C, in the first sentence, after "also, to reimburse the", deleted "client's security fund" and added the third and fourth sentences; and in Paragraph D, in the first sentence, after "public censures shall be", added "be filed in the Supreme Court clerk's office and shall be"; after "published in", deleted "the New Mexico Reports and"; after "the Bar Bulletin", deleted "and shall be filed in the Supreme Court clerk's office" and added "and New Mexico Appellate Reports"; and added the second sentence. The 2005 amendment, approved by Supreme Court Order No. 05-8300-023, effective December 13, 2005, amended Paragraph C to change "client security fund" to "client protection fund" and amended Paragraph E to change "day" to "date". The 1995 amendment, effective January 1, 1995, added the third sentence in Paragraph G. The 1992 amendment, effective September 1, 1992, inserted "or by the Disciplinary Board upon recommendation of a hearing committee after formal disciplinary proceedings" in Subparagraph (6) of Paragraph A and inserted "or (6)" in Subparagraph (2) of Paragraph B.
For the effect of disbarment, see 36-2-23 NMSA 1978 and Rule 17-212 NMRA. For reinstatement, see 36-2-23 NMSA 1978 and Rule 17-214 NMRA. Deferred period of suspension warranted. - Where respondent engaged in conduct involving intentional misrepresentations and the unauthorized practice of law; the conduct occurred shortly before and after respondent was admitted to practice law in New Mexico; respondent was unwilling or unable to understand the nature of respondent's misconduct; there was no indication that respondent was acting with a selfish motive or desire to secure a private benefit for respondent; and all of respondent's misconduct centered around respondent's single-minded purpose of righting what respondent perceived to be a wrong, a deferred one-year suspension from the practice of law was appropriate. In the Matter of Convisser, 2010-NMSC-037, 148 N.M. 732, 242 P.3d 299. Disbarment held to be warranted. - Disbarment for not less than five years was warranted for an attorney who represented a husband and wife in a guardianship and conservatorship proceeding in state district court to determine the husband's competency, yet at the same time filed two lawsuits in federal court to drastically alter the husband's estate in favor of the wife while acknowledging the husband's potential incapacity; continued to represent the husband and the wife and changed the husband's will and trust after he was disqualified by the state district court from representing the husband and the wife; refused to acknowledge the wrongful nature of his conduct; expressed his disdain and contempt for the disciplinary board; and within the past two years had been formally reprimanded for the same conduct in another case. In the Matter of Stein, 2008-NMSC-013, 143 N.M. 462, 177 P.3d 513. Permanent disbarment appropriate. - Where respondent counseled one client to bribe witnesses, unnecessarily revealed confidential communications in a fee dispute case, made material misrepresentations to tribunals and the disciplinary board, and where respondent converted money for his own use that was provided by a second client's parents for the sole purpose of posting a bond for the client, and where respondent filed a lien against the property of a third client's mother to secure a fee owed to him by the client, respondent's permanent disbarment from the practice of law in New Mexico was appropriate. In re Venie, 2017-NMSC-018. Authority to discipline attorney who is conditionally discharged of criminal act. - Supreme Court has sole authority to direct what constitutes grounds for the discipline of lawyers under N.M. Constitution, Art. VI, § 3 and has authority to impose discipline on an attorney who has pled no contest to a criminal act and who has been given a conditional discharge pursuant to Section 31-20-13(A) NMSA 1978. In re Treinen, 2006-NMSC-013, 139 N.M. 318, 131 P.3d 1282. Discipline for acts committed prior to admission to Bar. - An attorney may be disciplined for acts committed prior to admission, but not discovered until after admission. In re Mikus, 2006-NMSC-012, 139 N.M. 266, 131 P.3d 653. Purpose of probation. - By imposing probation, the court allows the lawyer to continue to practice law while requiring him to meet certain conditions that will insure the protection of the public and assist him in understanding and meeting his ethical obligations. These conditions are not mere guidelines, but are orders of the court which are to be obeyed. In re Rawson, 1986-NMSC-044, 104 N.M. 387, 722 P.2d 638. Duty of lawyer on probation. - A lawyer on probation should take great care to demonstrate that he appreciates his situation and diligently fulfills all of the conditions of his probation. In re Rawson, 1986-NMSC-044, 104 N.M. 387, 722 P.2d 638. The objective of a period of supervised probation is not merely to insure that an attorney comports himself or herself in accordance with the Rules of Professional Conduct and other rules of law and procedure during the period of probation, and thereafter be free to return with impunity to whatever aberrant behavior brought about the sanction in the first place; an attorney on probation is obligated to utilize the assistance and guidance of the supervisor to modify the practices or habits which led to the initial finding of misconduct. In re Tapia, 1996-NMSC-025, 121 N.M. 707, 917 P.2d 1379. Attorney's violations of a disbarment order and failure to appear at court proceedings to explain why he should not be sanctioned warranted five months of incarceration. In re Herkenhoff, 1997-NMSC-007, 122 N.M. 766, 931 P.2d 1382. Attorneys should not be allowed to practice law while on probation under a criminal sentence and the court may disbar such an attorney until he is no longer on probation. In re Norrid, 1983-NMSC-076, 100 N.M. 326, 670 P.2d 580. Exception to rule of suspension during probation for criminal conviction. - A narrow, limited exception to the Supreme Court's general rule that attorneys on probation for a criminal offense will not be permitted to practice law exists where the record is clear that the continued practice of law by the attorney will in no way endanger either the public or the reputation of the profession. In re Treinen, 2006-NMSC-013, 139 N.M. 318, 131 P.3d 1282. Exception to rule of suspension during probation for criminal conviction applied. - Where attorney pled no contest to a criminal act and was conditionally discharged pursuant to Section 31-20-13(A) NMSA 1978, and where record was clear that because attorney was devoted to providing legal services to the poor and disadvantaged, took responsibility for his criminal conduct, was sincerely remorseful, self-reported his conviction to the office of disciplinary counsel, was cooperative during disciplinary proceedings, and had no previous history of disciplinary complaints or criminal conduct, the continued practice of law by the attorney would in no way endanger either the public or the reputation of the profession and the attorney should be allowed to practice law during his probation. In re Treinen, 2006-NMSC-013, 139 N.M. 318, 131 P.3d 1282. One-year suspension warranted. - By keeping money that erroneously was given to him and then refusing to respond to demands that he properly channel the funds, attorney's conduct warranted suspension from the practice of law for a definite period of one year, with suspension deferred under prescribed terms and conditions. In re Norton, 1990-NMSC-029, 109 N.M. 616, 788 P.2d 372. Deferred suspension from practice for one year, subject to prescribed terms and conditions, was ordered for an attorney who incompetently handled his clients' bankruptcy proceedings. In re Hanratty, 1990-NMSC-079, 110 N.M. 354, 796 P.2d 247. Deferred suspension from practice for two years, subject to prescribed terms and conditions, was warranted for an attorney because his failure to properly pursue his client's criminal appeal violated the following rules: Rule 16-101, by failing to provide competent representation to his client; Rule 16-103, by failing to act diligently and promptly on his client's behalf; Rule 16-302, by failing to make reasonable efforts to expedite the appeal; Rule 16-804(D), by engaging in conduct prejudicial to the administration of justice; and Rule 16-804(H), by engaging in conduct which reflected adversely on his fitness to practice law. In re Neal, 2001-NMSC-007, 130 N.M. 139, 20 P.3d 121. Deferred suspension and orders for restitution were warranted by an attorney's neglect of clients' cases and failure to communicate with them on a regular basis, and because of his failure to comply with court rules upon his withdrawal of representation of clients by reason of ill health. In re Barrera, 1997-NMSC-057, 124 N.M. 220, 947 P.2d 495. Circumstances when suspension warranted. - When an attorney has been reprimanded but continues to engage in the same or similar misconduct, suspension from practice is generally the appropriate sanction. In re Rivera, 1991-NMSC-064, 112 N.M. 217, 813 P.2d 1015. Suspension for failure to supplement bar application. - Where attorney failed to report on his application for admission to the Bar that he had been involved in a crime prior to the filing of the application and failed to supplement his application with the facts of his indictment and conviction of the crime after he had been admitted to the Bar, suspension of the attorney was the appropriate sanction. In re Mikus, 2006-NMSC-012, 139 N.M. 266, 131 P.3d 653. Indefinite suspension warranted for a pattern of intentional and flagrant disregard of the Rules of Appellate Procedure. - Where attorney's pattern of practice over many years demonstrated an intentional and flagrant disregard for the Rules of Appellate Procedure, an indefinite suspension from the practice of law for one year was warranted. In re Salazar, 2019-NMSC-010. Indefinite suspension warranted. - Indefinite suspension warranted if intentional violation of procedural rule involved. In re Quintana, 1985-NMSC-101, 103 N.M. 458, 709 P.2d 180. Indefinite suspension ordered for violations of former Code of Professional Responsibility and present Rules of Professional Conduct involving invasion of trust account, failure to maintain appropriate records, dishonesty, negligence, conflict of interest, and cumulative misconduct, adversely reflecting on fitness to practice law. In re Benavidez, 1988-NMSC-074, 107 N.M. 520, 760 P.2d 1286. Solo practitioner was suspended indefinitely for a minimum period of one year, since his failure to keep his case load within manageable proportions could not excuse his neglecting cases and missing deadlines. In re Klipstine, 1989-NMSC-036, 108 N.M. 481, 775 P.2d 247. Attorney was suspended indefinitely for a minimum period of two years for failure to appear on three separate occasions or to file requests for a continuance in advance of his failures to appear despite receiving timely notices of trial settings. In re Tapia, 1989-NMSC-051, 108 N.M. 650, 777 P.2d 378. Indefinite suspension from practice for a period of no less than one year was ordered in the case of an attorney who neglected one client's case, failed to pay another client's bills after settling claims, and failed to appear on a third client's behalf at an administrative hearing. In re Privette, 1990-NMSC-078, 110 N.M. 352, 796 P.2d 245. A disciplined attorney's failure to provide full cooperation to disciplinary counsel, to take the Multistate Professional Responsibility Exam as ordered, and to petition for reinstatement in order to be terminated from probationary status warranted indefinite suspension of not less than one year. In re Norton, 1991-NMSC-053, 112 N.M. 75, 811 P.2d 573. An attorney who collected a fee to represent a client in a criminal matter and who failed to return the fee even though the charge was dismissed without any action by the lawyer, who subsequently contended, knowingly and dishonestly, that he was entitled to the fee in disciplinary proceedings, and who forged a physician's signature on a fitness to practice law form on an application to the Arizona bar, was suspended indefinitely. In re Cherryhomes, 1993-NMSC-044, 115 N.M. 734, 858 P.2d 401. Violating probationary terms warrants indefinite suspension. In re Tapia, 1996-NMSC-025, 121 N.M. 707, 917 P.2d 1379. Attorney was suspended indefinitely for violations of the following rules: Rule 16-101, by failing to provide competent representation; Rule 16-103, by failing to act with diligence and promptness in representing a client; Rule 16-104, by failing to keep a client reasonably informed; Rule 16-116(D), by failing to surrender papers and property to which a client was entitled; Rule 16-302, by failing to expedite litigation consistent with the interests of a client; Rule 16-801(B), by failing to respond to lawful requests for information from the office of disciplinary counsel; Rule 16-803(D), by failing to cooperate with disciplinary counsel in the course of the investigation; and 16-804 (C), (D), and (H) by engaging in conduct involving dishonesty, deceit, and misrepresentation, by engaging in conduct prejudicial to the administration of justice, and by engaging in conduct that adversely reflected upon his fitness to practice law. In re Romero, 2001-NMSC-008, 130 N.M. 190, 22 P.3d 215. Attorney was suspended indefinitely, pursuant to (A)(3), for a minimum period of two years with specific conditions, where the attorney mishandled client funds, charged excessive fees, committed deceit in charging the excessive fees, and delayed the handling of a client's matter. In re O'Brien, 2001-NMSC-025, 130 N.M. 643, 29 P.3d 1044. Suspension pursuant to Subparagraph A(3). - Attorney suspended from practice of law for indefinite period of time pursuant to Subparagraph A(3). In re Steere, 1991-NMSC-063, 112 N.M. 205, 813 P.2d 482. Attorney suspended indefinitely for failing to preserve identity of client's funds. In re Harrison, 1985-NMSC-110, 103 N.M. 537, 710 P.2d 731. Suspension for lying under oath. - Attorney was suspended for a period of six months for knowingly giving false statements under oath. In re C'de Baca, 1989-NMSC-049, 108 N.M. 622, 776 P.2d 551. Public censure and suspension. - Attorney was publicly censured and suspended for a minimum period of one year for intentionally altering a copy of a late-filed complaint in an effort to assure his client that it had been timely filed. In re Neundorf, 1989-NMSC-052, 108 N.M. 653, 777 P.2d 381. Attorney's misconduct, which included charging his client an unreasonable fee for representation in an extradition matter, warranted a public censure and a 30-day suspension from the practice of law. In re Silverberg, 1989-NMSC-035, 108 N.M. 760, 779 P.2d 546. Public censure and deferred suspension sufficient to protect the public. - Where attorney was hired by a client to pursue a personal injury case as a result of injuries that the client suffered, and where the case was dismissed for failure to prosecute because the attorney delayed filing the lawsuit for two years and failed to do anything on the client's behalf, a one-year deferred suspension with a public censure was adequate to protect the public because although the attorney committed negligence and attempted to remedy his negligence by deception, the attorney's neglect of his client was an isolated incidence of negligence and lack of diligence, the attorney attempted to make his client whole, and the attorney demonstrated sincere remorse for his actions. In re Torres, 2016-NMSC-019. Probation of indefinite suspension for mishandling trust funds warranted. In re Gabriel, 1990-NMSC-091, 110 N.M. 691, 799 P.2d 127. Disbarment appropriate for attorney convicted of tampering with evidence and making false report. In re McCulloch, 1985-NMSC-117, 103 N.M. 542, 710 P.2d 736. Disbarment for manufacturing evidence. - When an attorney, who is an officer of the court and whose duty is it to protect the integrity of the adversarial system, intentionally lies under oath and manufactures documents designed to achieve an advantage in litigation, he demonstrates a complete lack of fitness to practice law. In re Gabell, 1993-NMSC-045, 115 N.M. 737, 858 P.2d 404. Disbarment held to be warranted. - Disbarment was warranted where an attorney was found to have violated the Code of Professional Responsibility (now Rules of Professional Conduct) by forging his client's name to a settlement check and absconding with her money, by charging a clearly excessive fee, and by failing to cooperate with the Disciplinary Board in its investigation. In re Hill, 1987-NMSC-037, 105 N.M. 641, 735 P.2d 1147. Disbarment was warranted for an attorney's actions in taking money from clients and thereafter performing little or no work, as well as for his conversion of trust monies to his own use. In re Nails, 1987-NMSC-036, 105 N.M. 639, 735 P.2d 1145. Disbarment was warranted for an attorney convicted of bribery in violation of 30-24-2 NMSA 1978. In re Esquibel, 1992-NMSC-007, 113 N.M. 24, 822 P.2d 121. It was appropriate to impose discipline identical to that imposed by the State of Texas, since defendant was originally suspended by a New Mexico court, yet failed or refused to abide by the orders of the court that he comply with the notice requirements, failed to appear before court and failed to show cause why discipline identical to that imposed in Texas should not be imposed here. In re Deutsch, 1992-NMSC-034, 113 N.M. 711, 832 P.2d 402. Disbarment of an attorney was warranted where, based on his pleas of guilty to three counts of fraud and three counts of embezzlement, a hearing committee of the disciplinary board concluded that he violated Paragraphs B and H of Rule 16-804. In re Frontino, 2001-NMSC-010, 130 N.M. 175, 21 P.3d 635. Disbarment of an attorney for 20 months, with automatic reinstatement on a probationary basis, was warranted based on the necessary intervention in his law practice because he was abusing crack cocaine and on his admission that during his drug addiction he had misappropriated money from his attorney trust account in violation of Paragraph A of Rule 16-115, by failing to safeguard a client's property, and Paragraphs C and H of Rule 16-804, by engaging in conduct involving dishonesty, and conduct adversely reflecting upon one's fitness to practice law. In re Zamora, 2001-NMSC-011, 130 N.M. 161, 21 P.3d 30. Lawyer was disbarred for five-year period for conduct involving paying personal expenses from his trust account, converting client funds, lying to a court, and failing to cooperate with disciplinary counsel. In re Quintana, 2001-NMSC-021, 130 N.M. 627, 29 P.3d 527. Disbarment was warranted where the respondent engaged in violations of Rules 16-101, 16-103, 16-107(B), 16-302, 16-303(A), 16-305(C), 16-404, 16-801(A), 16-804(D), and 16-804(H). In re Neal, 2003-NMSC-032, 134 N.M. 611, 81 P.3d 47. New evidence of misconduct prior to original suspension. - When, while an attorney's license was suspended, additional charges were filed and the misconduct alleged was serious, but the alleged misconduct occurred prior to the original order of suspension and also he agreed to make restitution to the clients involved, assured the supreme court that these problems had been addressed and would not recur in the future, attended several CLE courses, undertook to revise his fee agreement forms, had (prior to his suspension) maintained his trust account in a manner satisfactory to an auditor selected by the disciplinary board, and had also taken and passed the Multistate Professional Responsibility Examination and, by all appearances, had modified his attitude toward his professional and ethical obligations, he was reinstated to the practice of law, but his license to practice was suspended for an additional period of one year pursuant to Paragraph A(2) but said period of suspension was deferred and he was placed on probation under certain terms and conditions. In re Rawson, 1987-NMSC-071, 106 N.M. 172, 740 P.2d 1156. Facts warranted extending an attorney's existing suspension for one additional year, for prior misconduct which came to light after suspension had been imposed. In re Tapia, 1990-NMSC-092, 110 N.M 693, 799 P.2d 129. Six-month suspension was deferred for one year, since there were mitigating factors, and respondent, who had experienced a drinking problem during the period when the misconduct occurred, had abstained from the use of alcohol for more than six months. In re Rivera, 1991-NMSC-064, 112 N.M. 217, 813 P.2d 1015. Mental disability can be considered in mitigation only if the attorney's recovery from the condition can be demonstrated by a meaningful and sustained period of successful rehabilitation. Thus, a mental disability, such as depression, can only mitigate the discipline to be imposed if it can be demonstrated that the condition is no longer likely to result in harm to the public. In re Smith, 1993-NMSC-042, 115 N.M. 769, 858 P.2d 857. ABA Standards. - In imposing discipline, the court looks to the ABA Standards for Imposing Lawyer Sanctions. In re Estrada, 2006-NMSC-047, 140 N.M. 492, 143 P.3d 731. Am. Jur. 2d, A.L.R. and C.J.S. references. - 7 Am. Jur. 2d Attorneys at Law §§ 33 to 35. Attorney's failure to report promptly receipt of money or property belonging to client as ground for disciplinary action, 91 A.L.R.3d 975. Conduct of attorney in connection with settlement of client's case as ground for disciplinary action, 92 A.L.R.3d 288. Conduct of attorney in capacity of executor or administrator of decedent's estate as ground for disciplinary action, 92 A.L.R.3d 655. Disciplinary action against attorney based on misconduct prior to admission to bar, 92 A.L.R.3d 807. Attorney's commingling of client's funds with his own as ground for disciplinary action -modern status, 94 A.L.R.3d 846. Restitution as mitigating circumstance in disciplinary action against attorney based on wrongful conduct, 95 A.L.R.3d 724. Disciplinary action against attorney for misconduct related to performance of official duties as prosecuting attorney, 10 A.L.R.4th 605. Validity and construction of procedures to temporarily suspend attorney from practice, or place attorney on inactive status, pending investigation of, and action upon, disciplinary charges, 80 A.L.R.4th 136.